88 N.Y.S. 847 | N.Y. App. Div. | 1904
The respondent is the administratrix of the estate and the widow of Charles Snedeker, deceased. Six months before his death he met with an accident which he claimed was due to the negligence of one Malcom, by reason of which he was thrown violently • from his bicycle in the public street. At that time he was confined to his house but a few days, and the result of the mishap did not appear to any one to be serious.. At the expiration of five months and a half he was taken. to his bed, and after an illness of two weeks died. Dr. John L. Macumber was in attendance upon him in his last illness, and the incident of the accident having been related to him,- he suggested to the widow that were an autopsy performed, and medical and microscopic examinations had, it might be demonstrated that Snedeker died as a result of the injuries he sustained six months before. Snedeker’s death abated an action he had brought against Malcom for the injuries sustained, and the respondent directed Dr.'Macumber to proceed in such manner as he thought proper to effect a determination of the medical questions involved, and signified to him that she would procure her appointment as administratrix and bring an action against Malcom to recover damages for her husband’s death; and then made an agreement with Dr. Macumber in relation to his compensation which all the parties hereto concede to have been void as against public policy.
After two trials judgment was obtained against the defendant in the suit of the administratrix for damages in the sum of $5,771.95. The deceased having left no children it appears that the administratrix supposed that under the provisions of sections 1902 and 1903 of the Code of Civil Procedure she was entitled, as the widow, to the entire proceeds of the litigation. After the recovery and the payment of the verdict, however, the father of the deceased,
By the stipulation of the parties in writing incorporated with the printed papers, it is agreed that “ upon the appeal herein, the only question presented for adjudication is the following: ‘The item and charge of $1,000 allowed to Dr. John L. Macumber,’ which the petitioner has and does object, to. In other words the appellant objects to that part of the decree, herein which credits the respondent with the payment to Dr. John L. Macumber of $1,000. All other objections are withdrawn.” Upon the report of the referee the surrogate disallowed certain items in the account and allowed certain others. Among the latter was the one of $1,000 paid to Dr. John L. Macumber as compensation for work, labor and services he had performed in connection with the litigation.
Section 1903 of the Code of Civil Procedure reads as follows: “The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action and his commissions upon the residue, which must be allowed by the surrogate upon notice, given in such a manner and to such persons as the surrogate deems proper.” It is under the authority of the language of the last sentence of this section that the administratrix claims the decree of the surrogate should be affirmed, allowing her to credit herself upon the accounting with this item of $1,000 as part of the expenses of the action. Argument is hardly necessary to establish the principle that a representa
In the case under review Dr. Macumber rendered extremely valuable medical, services to the administratrix; it appears undisputed from the evidence that, without services, of this nature being' rendered by some one, the action must have failed. The doctor, undisputed, testified on the hearing before the referee as follows: “ I worked the case up; studied .it up; talked with Dr. Evans and he came up' to see if there was anything in the heart or lungs to produce this condition in the brain. And after he was dead Professor Van Cott came into the case, and he made the autopsy and because Dr. Little attended him in his first sickness I requested him to be there and I was there. There were diseased spots in his brain, and it was impossible to determine whether liis death resulted from an injury which occurred six months before, and which permitted him to go about his business until a short time before liis death. Professor Van Cott took sections of the brain and different parts of the body,, the heart, lungs and all the vital organs and took them to the laboratory, hardened them and prepared them for work with the microscope and after several mpnths he reported to me that the findings in the brain were sufficient to connect the death with the accident; that there were evidences of a hemorrhage having taken place in the brain, .one on either side of the brain and had found the blood changes and he could definitely state that at a time before his death he had hemorrhages that could not be determined with the naked eye;
There.is no finding of the referee or the surrogate that these services were of the value ascribed to them. The decree allowing that sum to the administratrix should nevertheless be affirmed. Section 993 of the Code of Civil Procedure authorizes the Appellate Division to pass upon a-question of fact where that is necessary. That section provides in part as follows: “ The Appellate Division of the Supreme Court shall, on appeal from a judgment entered on the report of a referee, or the decision of a court on such trial, review all questions of fact and of l&w, and may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant.” We are of the opinion that it should be taken as a fact iii this case that the services rendered were of the value indicated. Section 2586 of the Code of Civil Procedure, relating to appeals from the Surrogates’ Courts, provides : “ Where an appeal is taken upon the facts the appellate court has the same power to decide the questions of fact, which the surrogate had; and it may, in its discretion, receive further testimony or
The view we take of the dispute renders it unnecessary to pass upon the legal questions discussed by the. referee upon which he sought to uphold the claim of the administratrix to the $1,000, which he finds had already been paid to Dr. Macumber.
The decree should, therefore, be affirmed.
All concurred.
Decree of. the Surrogate’s Court of Kings county affirmed, with costs.'